Comparative Constitutional Reasoning: The Law and Strategy of Selecting the Right Arguments

Annus, Taavi, Duke Journal of Comparative & International Law

I. INTRODUCTION

The relevance of comparative law in constitutional adjudication has repeatedly been at the center of heated debates. During the 2001-2002 term, the Supreme Court continued to struggle with this issue. In Atkins v. Virginia, (1) where the Court invalidated the death penalty for the developmentally disabled, this conflict was at its apogee. Chief Justice Rehnquist argued forcefully:

I write separately ... to call attention to the defects in the
Court's decision to place weight on foreign laws.... In
reaching its conclusion today, the Court ... adverts to the
fact that other countries have disapproved imposition of the
death penalty for crimes committed by mentally retarded
offenders.... I fail to see, however, how the views of other
countries regarding the punishment of their citizens provide
any support for the Court's ultimate determination.... [W]e
have ... explicitly rejected the idea that the sentencing
practices of other countries could serve to establish the first
Eighth Amendment prerequisite, that a practice is accepted among
our people.... For if it is evidence of a national consensus for
which we are looking, then the viewpoints of other countries simply
are not relevant. (2)

Justice Scalia seconded this:

[T]he prize for the Court's Most Feeble Effort to fabricate
"national consensus" must go to its appeal (deservedly relegated
to a footnote) to the views of assorted professional and religious
organizations, members of the so-called "world community," and
respondents to opinion polls.... [T]he practices of the "world
community," whose notions of justice are (thankfully) not always
those of our people[,] [are irrelevant]. (3)

This stinging criticism was indeed caused by a single sentence in a single footnote. (4) In addressing the criticism of the dissents, Justice Stevens added that although comparative arguments "are by no means dispositive," they still lend "further support to our conclusion that there is a consensus among those who have addressed the issue [of capital punishment for the developmentally disabled]." (5)

A second major case of the term, Zelman v. Simmons-Harris, (6) which involved school vouchers, also contained arguments relying on comparative experience. In this case, however, the comparative arguments were outlined by the dissenters. Justice Stevens stressed the influence of comparative experience in the Balkans, Northern Ireland, and the Middle East in evaluating religious funding of primary education. (7) Justice Breyer, arguing that the funding of religious schools might contribute to "religious strife," referred to the British and French experience:

I recognize that other nations, for example Great Britain and
France, have in the past reconciled religious school funding and
religious freedom without creating serious strife. Yet British and
French societies are religiously more homogeneous--and it bears
noting that recent waves of immigration have begun to create
problems of social division there as well. (8)

These two cases from the U.S. Supreme Court demonstrate that debate over the use of comparative reasoning in constitutional interpretation (9) is far from concluded. Two issues in particular are left open in these decisions. The first issue is openly and vehemently brought out by the dissenters in Atkins v. Virginia--namely, whether the use of comparative constitutional law in domestic adjudication is appropriate at all. When courts choose to accept comparative constitutional arguments they must then address a second issue--the weight of comparative arguments relative to other methods of analysis.

This article tries to provide answers to these two questions. It will make a contribution to the growing literature on comparative constitutional law in three ways. First, this paper systematically distinguishes between different uses of comparative law. …

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